Opinion
December Term, 1838.
Two Defendants — Appeal.
1. In an action of assumpsit in the county court against two, if they plead separately "non assumpsit," but the jury find a verdict and assess damages jointly against both, one cannot appeal without the other, and if the appeal at the instance of one alone be carried up and placed on the trial docket of the Superior Court, and the plaintiff obtain an order at the first term to take a deposition and the cause be then continued to the next term, it will at that term be dismissed upon the motion of the plaintiff.
2. The case of Hicks v. Gilliam, 15 N.C. 217, approved.
THIS was an action of assumpsit, brought in the county court of Franklin, against one Joseph J. Ward and the defendant William D. Jones, as the administrator of John L. Ward. Joseph J. Ward, by his attorney, pleaded "general issue, payment, and set-off," and the defendant Jones, by his attorney pleaded "general issue." A jury, being impanelled to try the issues joined, found that the "defendant Jones' intestate did assume," and further, "that the defendant Ward did assume, and that there was no payment or set-off," and they assessed the plaintiff's damages to $380.79, upon which the court rendered "judgment accordingly." From this judgment the defendant Jones prayed an appeal, which was granted; the defendant Ward, being in court and refusing to join in the appeal. At the next ensuing term of the (292) Superior Court the case was brought into court and docketed. At the same term the plaintiffs obtained an order for taking a deposition, and the cause was then continued to the following term, to wit: the fall term of 1838, when His Honor, Judge Saunders, upon motion of the plaintiff's counsel, dismissed the appeal, upon the ground that it was an appeal by one of the parties only to the judgment in the county court. From this order dismissing the appeal the defendant Jones appealed to the Supreme Court.
W. H. Haywood for the defendant, and by
Badger and Battle for the plaintiffs.
This case was submitted without argument by
In the county court, where this action commenced, the defendants plead separately "non assumpsit." The jury, as they ought to have done, assessed the damages jointly, and the judgment under our statute accordingly was joint — that the plaintiff recover his damages and costs, to be levied of the goods and chattels, lands and tenements of Jos. J. Ward, and of the goods and chattels which were lately belonging to John L. Ward, deceased, now in the hands of William D. Jones, his administrator, to be administered. The administrator of John L. Ward prayed an appeal, and the other defendant objected to the appeal. We think this case is governed by the case of Hicks v. Gilliam, 4th Dev. Rep., 217, and that the judgment of the Superior Court, dismissing the appeal, was correct. The county court has a power to grant new trials on each and every ground that the Superior Court has. If the verdict had been against the law or the evidence, that court could have had the case submitted to another jury, at the instance of any of the parties complaining. An appeal entirely vacates the judgment and cannot be allowed at the instance of one person against the will of another who is jointly bound by the judgment. If a point of law relative to the cause be raised on the trial, and either party is dissatisfied with the decision of the court, it may be the subject of a bill of exceptions. Then one of several plaintiffs or defendants may, in the name of all, bring a (293) writ of error, and transmit the whole record into the Superior Court. The granting a writ of error only suspends the execution; the judgment stands firm until it is reversed in the Superior Court. But even after the record is transmitted into the Superior Court by writ of error, one plaintiff in error cannot, without summons and severance, assign errors without the authority of his co-plaintiffs. If he does, the defendant in error may move to quash the proceedings. The decision of the Superior Court in this case being correct the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Stiner v. Cawthorn, post; Stephens v. Batchelor, 23 N.C. 61; Kelly v. Justices, 24 N.C. 433; Otey v. Rogers, 26 N.C. 537; Donnell v. Shields, 30 N.C. 372; Smith v. Cunningham, id., 461; Jackson v. Hampton, 32 N.C. 594; Kelly v. Muse, 33 N.C. 184.